Misconduct may present itself in many forms and the Labour Relations, Act 66 of 1995 (LRA), as amended, makes provision for steps to be taken by an employer.
More often than not, the employer’s first reaction in dealing with a misbehaving employee, is to seek dismissal. However, this approach should not be the first option that an employer takes, if it can be avoided. Dismissal of an employee is an extremely serious punishment which should be proportionate to the offence committed by the employee. Dismissal should be turned to only as a last resort.
When an employee is suspected of being guilty of misconduct an employer must follow certain procedures when taking disciplinary action against the employee. The LRA requires that procedural fairness be exercised in the course of disciplinary action being taken and prescribes measures prior to dismissals that should be followed. These measures include counselling and warnings in order to prevent similar behaviour in the future (Schedule 8(3)(2) LRA). If an employee re-offends then it may be necessary to issue the employee with a further or final warning or other actions which do not amount to dismissal, each action depending upon the seriousness of the offence (Schedule 8(3)(3) LRA).
The LRA provides employers with procedures to be followed when taking disciplinary actions against an employee. In the case of suspected misconduct it is essential that the employer conducts a thorough investigation into the alleged misconduct in order to determine whether a rule has in fact been contravened (Schedule 8(4) LRA). If the investigation proves fruitful and misconduct can be proved, then the employer should apply his or her mind as to the seriousness of the misconduct in order to determine the appropriate disciplinary action.
As emphasised above, dismissal should only be a disciplinary action taken as a last resort. However, if dismissal is the necessary action to be taken, the employer must effect that action in accordance with the LRA, which not only provides for procedural fairness but also, crucially, to substantive fairness. Thus, it is not enough for an employer to only follow the procedures for dismissing an employee.
The employee is also entitled to substantive fairness, which means that there should be a fair and substantial reason for dismissing the employee. The “punishment should fit the crime”, so to speak.
In determining whether a dismissal of an employee is unfair, the LRA provides guidelines for an employer to consider. In Schedule 8(7) directs an employer to determine whether the employee had in fact contravened a rule governing acceptable conduct in the specific workplace. If such a rule had been contravened then one must determine whether the rule is reasonable and whether the employee was aware, or should reasonably have been aware of the rule. It should also be taken into consideration whether the rule has been consistently enforced by the employer. The most important consideration is whether dismissal is an appropriate punishment. Thus, once the guidelines in Schedule 8(7) were followed and complied with, then dismissal can be presumed to be substantially fair.
Roadmap in dealing with misconduct:
- Investigate the matter fully once misconduct is reported or suspected.
- Consult with the offending employee and discuss the matter and the findings of the investigation.
- Furnish the employee with warnings whether first, final, informal or formal (if the offence does not warrant dismissal).
- If the employee subsequently commits similar misconduct and dismissal is warranted, then inform the employee of the reasons for his or her dismissal as well as his or her rights to challenge the disciplinary action.
Should an employer be uncertain as to any of the above steps or not be in a position to attend to the matter in an objective manner, experts should be consulted for assistance.
Author: Devan van Zyl (LLB), Legal Advisor at The Labour Law Company